Dream Set Fashion, Inc.

Plain-English summary

Dream Set Fashion manufactured women's apparel in New York City and contested only the $5,500 penalty for six serious violations. The conditions involved a covered exit sign, unguarded fan blades, an unguarded rotating shaft, an unguarded sewing-machine pulley, missing grounding pins, and an open electrical panel box. The company argued that few employees were exposed and that it had suffered an operating loss. The Commission considered the company's 35-employee size and lack of prior OSHA violations, but gave no good-faith credit because it had no safety program. It found the item-by-item penalties supported by the hazards and recurring employee exposure and affirmed the total assessment.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.37(q)(1), 1910.212(a)(5), 1910.219(c)(2)(i), 1910.219(d)(1), 1910.304(f)(4), and 1910.305(b)(1).
• Outcome: Affirmed. Six serious items and penalties totaling $5,500 were upheld.
• Key point: Financial loss and limited exposure do not require a penalty reduction when the statutory factors and the gravity of recurring hazards support the assessment.

Full text (OSHRC public release)

                            UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                             One Lafayette Centre
                       1120 20th Street, N.W. - 9th Floor
                          Washington, DC 20036-3419

SECRETARY OF LABOR, ..

                Complainant,
                                      a
                                      .
         v.                           .      OSHRC Docket No. 92-2962
                                      ..

DREAh4 SET FASHION, INC., ..
.

                Respondent.           ..
                                      .


                                  DECISION

Before: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
The sole issue in this case is whether Chief Administrative Law Judge
Kng Sommer’s assessment of $5,500 in penalties for a six-item serious citation is
appropriate. The Occupational Safety and Health Administration (“OSHA”), of the United
States Department of Labor, initially proposed the amount. Dream Set Fashion, Inc., a
manufacturer of women’s apparel in New York City, argues for a reduction, mainly because
relatively few employees were exposed to the ha&rdous conditions involved in this case and
because the company suffered a loss in fiscal year 1992, the year that the inspection took
place. For the following reasons, based upon the evidence presented by the Secretary of
Labor and the employer, we affirm the $5,500 assessment.
If the Secretary of Labor (“the Secretary”) issues a citation under section 9(a) of the
Occupational Safety and Health Act of 1970,29 U.S.C. 55 651678 (“the Act”), section 10(a)
requires the Secretary to “notify the employer, by certified mail of the penalty, if any,
proposed to be assessed under section 17.” Once the employer notifies the Secretary of an
intention to contest the citation or the proposed assessment of penalty, the Commission is
required by section 10(c) to “issue an order, based on findings of fact, affirmbg, modifying
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or vacating the Secretary’s citation or proposed penalty, or directing other appropriate
relief.” In assessing a penalty under the Act, the Commission must consider whether it is
supported by factual findings that bear on the specific criteria of section 17(j) of the Act, 29
U.S.C. 0 666(j). See JA. Jones Constz Co., 15 BNA OSHC 2201,2214,1991-93 CCH OSHD
li 29,964, p. 41,033 (No. 87-2059, 1993). The Commission may not assess a penalty that is
not supported by appropriate evidence.’ Section 17(j) requires the Commission to give
“due consideration” to four criteria in assessing penalties, Le., the size of the employer’s
business, the gravity of the violation, any good faith shown by the employer, and the employ-
er’s prior history of violations. State Sheet Metal Co., 16 BNA OSHC 1155, 1161-62, 1993
CCH OSHD lf 30,042, p. 41,227 (No. 90-1620, 1993). These factors are not necessarily
accorded equal weight; generally speaking, the gravity of a violation is the primary element
in the penalty assessment. laity Iitd~., I&.,      15 BNA OSHC 1481, 1483, 1991-93 CCH

. OSHD 1129,582, p. 40,033 (No. 88-2691,1992). Gravity includes, the severity of any possible
injury and the probability of an accident. CF & T Available Concrete Rmzping Inc., 15 BNA
OSHC 2195, 2199, 1991-93 CCH OSHD ll 29,945, p. 40,939 (No. 90-329, 1993). Matters
such as the number of employees exposed, the duration of the exposure, the precautions
taken against injury, and the likelihood that any injury would result are also factored into any
determination of gravity. Caterpill& Inc., 15 BNA OSHC 2153,2178,1991-93 CCH OSHD
ll 29,962, p. 41,011 (No. 87-922, 1993).
The evidence as to Dream Set’s size, good faith, and history of OSHA violations is
straightforward in this case. At the time of the inspection, the company employed thirty-five

‘Commission judges occasionally omit from their decisions full discussion of the underpin-
nings of their penalty assessments. Illustratively, the judge here did not delineate which of
his findings formed the basis for his penalty assessments; instead, he stated that the
proposed penalties are consistent with the statutory criteria “[ulnder all the existing facts and
circumstances.” It is axiomatic that determination by judges of an appropriate penalty is a
matter of discretion resulting from the application of the section 17(j) criteria to the relevant
facts. Angel Cona Co., 1 BNA OSHC 1749,1750,1973-74 CCH OSHD T 17,750 (No. 494,
1974). Absent a fully articulated rationale for a judge’s assessments, however, it is difficult
for the Commission to appropriately review the exercise of this discretion. We find,
however, that the evidence of record here permits the Commission independently to make
the findings necessary to assess penalties against the Respondent.

3
persons. At the hearing, the company’s representative, asserted that the company suffered
a loss of “close to sixty-thousand dollars” in fiscal year 1992 and that “[a]ny penalty assessed
will jeopardize the company and the jobs of its workers.“2 As it had not previously been
inspected by OSHA, the company had no prior history of OSHA violations. The company
did not have a safety program, although the company’s manager did testify that there had
been no prior work-related injuries. He also claimed that, prior to this inspection, the
company had always complied with state and local requirements, such as those of the fire
department. The company’s manager had never heard of OSHA until the compliance
officer appeared for this inspection, despite the fact that he had been manager for ten years
and the company had been in business for twelve years.
The evidence as to the gravity of the violations in this case varies with the individual
facts of each violation. In Item 1, an “Exit” sign at a window giving access to a fire escape
was not vislible,because employees had hung a piece of fabric to block the glare of sunlight.
This was contrary to orders given by the plant manager following a local fire department
inspection. The compliance officer noted that other exits did exist, but his concern remained
that in event of fire a delay in finding the window exit could expose some employees to
respiratory and bum injuries. The Secretary proposed a penalty of $1,000, which the judge
assessed.
Item 2 involved a high-velocity window fan located 4-S feet above the floor that
lacked a guard over its blades. In front was a wide steam (ironing) table, but on the wall
were objects that employees might reach for, including the fan’s on-off switch, located
approximately 1 foot from the blades. The manager occasionally switched off the fan before
changing a belt on another fan higher up the wall, and a maintenance employee had occa-

2The copy of the corporate tax return which the manufacturer’s representative showed to
the judge is not in evidence. The judge did not place the document in evidence when the
representative said, “Judge, I want to submit to you a copy of Dream Set’s Corporate Tax
Return for fiscal year ended September 30, 1992.” The judge replied, “I see it[;] you have
brought it to my attention.” Given the pro se status of the representative, the judge should
have considered his submission of the document as a request to place it in evidence.
However, the judge’s failure to place the document in evidence was essentially harmless
error.
 4
sion to use other objects hung on the wall. Contact with the fan’s blades could result in
severe lacerations to fingers or hands. For this item, the judge assessed $750.
In Item 3, a small (4 inches by 2-3 inches) portion of a high-revolution shaft on a
steam condenser motor was unguarded. The unguarded portion was approximately 12-15
inches above the floor. Nearby were some movable carts or hampers. The compliance
officer believed there was a risk of lacerations or fractures. The manager testified that,
although one employee did enter the area to start the boiler, the boiler and all other equip-
ment in the area were hot, so employees did not walk nearby. He also testified that
employees were always separated from the unguarded shaft by a workhorse and a cart for
paper boxes, which was never moved. For this item, the judge assessed $1,000.
Item 4a involved a missing guard on a metal pulley on a sewing machine motor below
the sewing table. Although the manager testified that contact with the unguarded pulley
during normal operations would be unlikely, a garment could get caught in the unguarded
pulley. The compliance officer, who observed the sewing machine in use during the
inspection, believed that the operator could contact the pulley because “the motor is
mounted probably only approximately a foot behind the front of the table where the
employee [sits], which puts the motor right over [the] knee.” The operator could suffer
sprained fingers or lacerated legs. The probability of an accident was low, in the compliance
officer’s opinion, because “employees . . usually use their hands to operate the machine
l

above the table.” The penalty proposed and assessed for this item was $750.
Item 5 involved missing ground pins on the electrical plugs on three sewing machines.
The manager had not inspected the machines’electrical cords for about six months prior to
the OSHA inspection. The operators had not told him that any ground pins were broken
off because the machines still operated and many of the machines in the factory only had
two- prong plugs. But the compliance officer testified that an employee could suffer up to
a moderate electric shock. “If the motor has a ground fault in it, the outside casing of the
motor will be a shock hazard if you touch that,” because “b]ou become a ground to the
ground.” But the compliance officer rated the probability of an accident as low, for “there
would have to be a ground fault for that hazard to hurt someone.” The Secretary proposed
and the judge assessed a penalty of $1,000 for this item.
 5
Item 6 involved an open electrical panel box without dummy circuit breakers (plastic
covers) over the unused openings in the box. The box was in a basement storage room
mounted over a work table, approximately 5 feet from the floor. The manager, sometimes
accompanied by an employee, occasionally brought boxes or hampers or garments down to
the basement room. The compliance officer was concerned that, even though the openings
were not large, a hanger might contact electrical parts and give a moderate electric shock.
The Secretary proposed a penalty of $1,000, which the judge assessed.
Upon review of the entire record we conclude that the penalties which the judge
assessed in this case are well supported by the evidentiary record.3 Even considering the
manufacturer’s asserted operating loss in fiscal year 1992, we find that other factors
discussed below are a sufficient basis for retaining the judge’s assessment.4 The gravity of
the six items was low or medium/low considering the nature of the possible injuries; the
covered exit sign, the missing ground pins, and the lack of dummy circuit breakers could all
have presented risks of death or severe physical harm, and the other three violative
conditions presented risks of lacerations ranging from relatively minor to severe. Moreover,
as to each of the six items, there was a recurring exposure of one or more employees,

3Chairman Weisberg observes that the Commission is affirming the judge’s penalty
assessments which are consistent with the penalties proposed by the Secretary. Hence, as an
initial matter and apart from the Commission’s own analysis of the evidence, he feels it is
instructive to examine the Secretary’s basis for the figures proposed. In this regard, the
Chairman notes that the compliance officer used $7000 as a starting point for each violation
(under the Omnibus Budget Reconciliation Act of 1990, Pub.L.No. 101.508,s 3101 (1990))
but arrived at a lesser figure based, in part, on each item’s gravity. He rated the gravity of
the six items in this case as low or medium/low, to which he assigned a figure of $1,500 or
$2,000, respectively. He then set a percentage reduction for size (40%) and for prior history
(10%). Chairman Weisberg notes additionally that the compliance officer’s reduction of 40%
for size was comparatively generous and may well have encompassed consideration of the
company’s f!inancial condition.

4Commissioner Montoya notes that while the Commission provides a forum for affected
parties to raise their concerns about OSHA citations, generally she is not amenable to a
company’s argument that financial circumstances make it unable to afford the minimum level
of safety and health. CJ AFL-CIO v. Brennan, 530 F.2d 109, 123 (3d Cir. 1975) (Congress
has recognized and accepted the proposition that certain marginally efficient or productive
employers could only abate by ceasing operation).
 6
counting the manager. Credit is given because of the company’s small size, based on its
employment of only 35 persons. The company’s lack of a history of prior violations also
deserves credit. As for good faith, we find that no credit for it is warranted because of the
lack of any safety program, regardless of the manager’s efforts to comply with local fire
standards and other local or state requirements. Accordingly, we affi the judge in
assessing penalties totalling $5,500.

                                                     Stuart E. Weisberg
                                                     Chairman

                                                               c

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                                                     Edwin G. Foulke, Jr.
                                                     Commissioner

Dated: &t v u94